7 POSH Policy Pitfalls: Spotting and Fixing the Flaws

This blog is a sequel to “10 POSH Policy Pitfalls: Spotting Mistakes and Fixing the Flaws.”

Here are seven critical insights into common pitfalls in POSH policies. These highlight areas where organizations often deviate from the law and why this is problematic. 

7 POSH Policy Pitfalls

1. Unwilling Isn’t Unable! Clarifying Consent for Proxy Complaints 

Explanation: Some POSH policies state that if an aggrieved woman is “unable or unwilling” to file a sexual harassment complaint, another person can do so with her written consent. However, the POSH Act specifies "unable" in this context—not "unwilling." This distinction is crucial because "unable" addresses situations where the complainant may be physically or mentally incapacitated, dead, or otherwise hindered from filing a complaint on her own. Including "unwilling" can create ambiguity, potentially leading to complaints that do not fully reflect the complainant’s wishes. 

Potential for Coercion: Including "unwilling" can lead to subtle coercion, where a complainant might be nudged into giving written consent out of fear of being viewed as uncooperative or pressured by well-meaning colleagues or managers. A colleague might approach an aggrieved woman who hesitates to file a complaint and insist that "this needs to be addressed," prompting her to sign a written consent out of peer pressure rather than genuine intent. This approach can undermine her agency, as she may feel obligated to participate in a complaint she does not fully endorse.

Ensuring only “unable” is used helps align with legal language and maintains the integrity of the complaint process.

    2. Reporting Rights, Not Mandates: Clarifying Employee Responsibilities 

Explanation: POSH policies sometimes imply that all employees are "obligated" to report instances of sexual harassment. However, the term “obligation” can be misleading because it means that employees are mandated to report such incidents, potentially pressuring individuals into filing complaints even if they don’t feel comfortable doing so. Instead, the policy should highlight that reporting sexual harassment is a "right" that employees may choose to exercise if they experience or witness inappropriate behavior. Framing it as a right rather than an obligation respects employees' autonomy, allowing them to act based on their comfort level while encouraging a safe and open workplace. 

    3. Anonymous Complaints: Balancing Confidentiality with Fair Process

Explanation: A statement like "Anonymous complaints are not permissible and will not be entertained" might deter complainants who feel anxious about revealing their identity due to potential repercussions or concerns about confidentiality. Instead, the POSH policy should provide a more supportive explanation. It can clarify that, under POSH law, all complaints must be documented in writing so that a copy can be shared with the respondent to maintain fairness. 

The respondent has a right to know the complainant's identity to provide a meaningful response and ensure a balanced inquiry process. A written complaint, preferably using a template, also helps the complainant gather, organize, and document her experience with specific details. 

Rather than outright discouraging anonymous reporting, the policy should focus on creating an environment of trust where employees feel secure reporting concerns, confident that their privacy will be respected, and assured that the IC will handle the case sensitively and professionally.

4. Senior Presiding Officer or Overreach? Let’s Talk Compliance with POSH!

Explanation: Certain policies suggest appointing a "Senior Presiding Officer" (SPO) from the leadership team as the overarching Chairperson of all ICs. All POs report to the SPO and ICs require SPO approval for IC recommendations.

While the concept of a Senior Presiding Officer may appear to streamline IC processes, it introduces a layer of hierarchy that conflicts with the intent of the POSH Act. The law mandates that the Presiding Officer of an IC, a senior female employee of the organization, leads the committee independently. By requiring SPO approval for IC recommendations, this policy risks undermining the autonomy of the IC and violates the binding nature of IC recommendations under Section 19 of the POSH Act.

Moreover, the designations “Senior Presiding Officer” and “Chairperson” are not legally recognized under the POSH framework for the Internal Committee constitution. Such provisions may inadvertently signal that leadership wants control over IC decisions, creating potential challenges for fairness and compliance. Ensuring the IC functions as an impartial, independent body to uphold the spirit of the law and the trust of employees is crucial.

    5. HR Investigating? That’s Crossing the Line

Explanation: Some POSH policies suggest that a complainant can file a complaint with the IC or the Human Resources (HR) Department. If filed with HR, the complaint will be returned to the IC within 7 business days after HR's initial investigations. However, this approach is not in alignment with the POSH Act.

Under this law, only the IC is authorized to receive and address sexual harassment complaints in the workplace. HR's role is to immediately forward any complaint to the IC without conducting any investigations or assessments. Delays or preliminary inquiries by HR could compromise the integrity of the process and deter complainants from seeking justice.

A compliant policy ensures that complaints reach the IC promptly and directly, maintaining the committee's independence and ensuring the process is fair, transparent, and legally sound. Remember, under POSH, HR is a facilitator, not an investigator!

    6. Checklist Confusion: Who Decides What’s Sexual Harassment?

Explanation: Some policies impose an unrealistic burden on the complainant by stating that before filing a sexual harassment complaint, they must ensure the incident fits the examples under the policy's definition. If not, the complaint should be redirected to HR. This is fundamentally flawed.

Sexual harassment is subjective and situational, and it is impossible to create an exhaustive list of all potential scenarios in a policy definition. The POSH Act ensures that every complaint is heard and assessed by the IC, not dismissed or diverted based on rigid definitions or initial screenings by HR. Let the IC do its job—evaluate, conciliate, or inquire, and ensure fairness!

    7. No Outsiders Allowed! Why Only the IC Should Handle the Complainant's Examination

Explanation: Some POSH policies attempt to substitute IC members with a third-party representative (not the External Member) to conduct the complainant’s examination “when complainants feel uncomfortable narrating their experiences to the IC.” While it may appear supportive, this approach contradicts legal and procedural best practices under POSH. Here is why:

1. Representation and Composition Requirements: By law, an IC must have at least 50% female representation with a minimum of 4 members (including PO and External Member) to ensure gender sensitivity. In conducting an inquiry hearing, a minimum of three IC Members, including the Presiding Officer (quorum), must be present, and the complainant’s examination is part of the inquiry process. Hence, any action taken outside of this IC disrupts legal standards and bypasses the designed composition of the IC.

2. Critical Nature of the Examination: The complainant's initial narration, called "Examination," is a specialized procedure requiring IC members to be trained in POSH protocols during capacity and skill-building workshops. This examination builds the factual foundation for the inquiry, which means no one outside the IC can accurately or effectively conduct it.

The IC’s quorum isn’t optional at any stage while conducting an inquiry. A quorum has no upper limit under the law but should not have too many members to ensure it does not appear intimidating to the parties. 

Ultimately, the IC must be well-trained to conduct the inquiry hearings with professionalism, empathy, and adherence to legal standards, ensuring that the complainant and the respondent are treated fairly and that the inquiry proceeds smoothly.

Regular audits and periodic policy reviews are vital to ensure that workplace policies are legally compliant and aligned with the principles of the POSH Act.

This proactive approach helps identify and rectify misleading or factually incorrect provisions, as employees may rely on the policy to educate themselves and to gauge how committed an organization seems. Equally important is the emphasis on maintaining the independence of the IC, which is the cornerstone of a fair inquiry process. Organizations must actively support the IC by providing adequate support (physical and IT infrastructure) and balancing business duties with IC responsibilities. These measures empower the IC to carry out their roles and responsibilities effectively, ensuring justice and reinforcing the organization’s commitment to a workplace free of sexual harassment.